FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : J & J VISIONCARE PRODUCTS IRELAND LTD T/A VISTAKON IRELAND (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - TARIQ SHAIKH (REPRESENTED BY HAYES, SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appealing against a Rights Commissioner’s Decision r-072285-hs-08.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on 30th July 2009. A Labour Court hearing took place on 26thMay 2010 with subsequent hearings on the 12thJanuary 2012 and 9thNovember 2012.
DETERMINATION:
Section 27 of the Safety Health and Welfare at Work Act 2005 provides protection to employees against penalisation by their employer where they make a complaint or representation regarding health and safety at work.
In relevant part Section 27 (3) provides
(3) An employer shall not penalise or threaten penalisation
against an employee for—
(c) making a complaint or representation to his or her safety
representative or employer or the Authority, as regards
any matter relating to safety, health or welfare at work,
Penalisation has a very broad meaning within the Act. Section 27 provides
- Section 27.—(1) In this section “penalisation” includes any act or omission
by an employer or a person acting on behalf of an employer
that affects, to his or her detriment, an employee with respect to any
term or condition of his or her employment.
(2) Without prejudice to the generality ofsubsection (1), penalisation
includes —
(a) suspension, lay-off or dismissal (including a dismissal
within the meaning of the Unfair Dismissals Acts 1977 to
2001), or the threat of suspension, lay-off or dismissal,
(b) demotion or loss of opportunity for promotion,
(c) transfer of duties, change of location of place of work,
reduction in wages or change in working hours,
(d) imposition of any discipline, reprimand or other penalty
(including a financial penalty), and
(e) coercion or intimidation.
to the employee in respect of that penalisation both under this Part
and under those Acts.
Where an employee believes himself to have been penalised contrary to the provisions of Section 27 he may make a complaint a Rights Commissioner under Section 28 of the Act. Section 28 sets out the jurisdiction of the Rights Commissioner in the following terms: -
Section 28. of the Safety Health and Welfare at Work Act 2005 that —(1) Without prejudice tosection 27(4), an employee may present a complaint to a rights commissioner that his or her employer
has contravenedsection 27.
(2) Where a complaint undersubsection (1)is made, the rights
commissioner shall—
- a) give the parties an opportunity to be heard by the commissioner
and to present to the commissioner any evidence
relevant to the complaint,
(b) give a decision in writing in relation to it, and
(c) communicate the decision to the parties.
(3) A decision of a rights commissioner undersubsection (2)shall
do one or more of the following:
- (a) declare that the complaint was or, as the case may be, was
not well founded;
(b) require the employer to take a specific course of action;
(c) require the employer to pay to the employee compensation
of such amount (if any) as is just and equitable
having regard to all the circumstances.
(4) A rights commissioner shall not entertain a complaint under
this section unless it is presented to him or her within the period of
6 months beginning on the date of the contravention to which the
complaint relates or such further period not exceeding 6 months as
the rights commissioner considers reasonable.
(5) (a) A complaint shall be presented by giving notice of it in
writing to a rights commissioner and the notice shall contain
such particulars and be in such form as may be specified
from time to time by the Minister.
(b) A copy of a notice underparagraph (a)shall be given to
the other party concerned by the rights commissioner
concerned.
(6) Proceedings under this section before a rights commissioner
shall be conducted otherwise than in public.
(7) A rights commissioner shall furnish the Labour Court with a
copy of any decision given by the commissioner undersubsection (2).
Either party may appeal to this Court against a decision of the Rights Commissioner. The procedure for doing so and the jurisdiction of this Court is set out in section 29 of the Act. Section 29 in relevant part provides
29.—(1) A party concerned may appeal to the Labour Court from
- a decision of a rights commissioner undersection 28and, if the party
does so, the Labour Court shall give the parties an opportunity to
be heard by it and to present to it any evidence relevant to the
appeal, shall make a determination in writing in relation to the
appeal affirming, varying or setting aside the decision and shall communicate
the determination to the parties.- (2) An appeal under this section shall be initiated by the party
concerned, within 6 weeks of the date on which the decision to which
it relates was communicated to the party, by giving written notice to
the Labour Court undersubsection (4)stating the intention of the
party concerned to appeal against the decision.
(3) A copy of a notice undersubsection (2)shall be given by the
Labour Court to any other party concerned as soon as practicable
after the receipt of the notice by the Labour Court.
- (2) An appeal under this section shall be initiated by the party
In this case the Mr Tariq Shaikh (the Complainant or the Worker) worked, initially on a 9-month probation, as a Process Technician for J & J Visioncare Products Ireland Limited trading as Vistakon Ireland (the Respondent or the Company) from 15thOctober 2007 until he was dismissed on the 30thMay 2008.
In evidence he claimed that his dismissal arose as a result of two complaints he made regarding the behaviour towards him of another process technician with whom he worked. He claims he made the first complaint to his Manager, Mr Jerome Disney, roughly three months after he commenced work with the Respondent. He claims that after he made this complaint he was moved to another line that placed him in closer proximity to the person about whom he complained. He claims that about five months after his employment commenced he complained for a second time to Mr Disney. This time he submits that his co-worker had bullied him and had raised his hand in a threatening manner towards him. He claims that Mr Disney took no action on foot of this complaint. He claims that he was subsequently dismissed in the early hours of the 30thMay 2008 and summarily escorted from the premises. He claims that he had performed well and had made steady progress at his work. He said that he was entitled to a performance review after three months. He claims that no such review took place until he requested one in accordance with the terms of his appointment to the post. He says that his progress was the subject of positive comments during that review. He says that his second review took place very shortly thereafter and that too was positive. He says that the decision to dismiss him was unexpected and can only be related to the complaints he made as his work performance was of a very high standard.
He claims that his dismissal amounted to an infringement of the provisions of Section 27 (3)(c) of the Act. He claims that he was dismissed in some part because he made a complaint regarding a matter of health and safety to his employer.
On behalf of the Respondent the Human Resources Manager, Ms Aine O’Dea, said that the Complainant was employed on a 9-months probation. She claims that his work was assessed over that period and that he failed to make the progress expected of him. She claims that his dismissal arose out of this failure to progress as expected as he was unsuitable for permanent employment. She outlined the various policies in place for the processing of these matters and said that the Complainant was given every opportunity to improve and failed to do so. She said that the Company operates a Dignity at Work Policy that is available to all staff through the Company intranet. She said that the Complainant did not invoke the provisions of that Policy. She said that she was not aware of any complaint regarding bullying and harassment that was allegedly made by the Complainant.
Mr Disney acknowledges that he received a complaint from the Complainant regarding a co-worker. He said in evidence that he considered it a minor disagreement between two co-workers and dealt with the matter in a prompt and informal way. He said that as the two were not getting along and, as the Complainant was undergoing training, he moved him to another line to assist his development.
Mr Disney said that the Complainant did not make a second complaint to him regarding an alleged assault or any other menacing behaviour towards him by another employee. He said that the Complainant failed to make the necessary progress to justify a permanent appointment. He said that his lack of progress was brought to his attention on several occasions during his probation. He said that he finally decided to terminate his employment after he failed to improve in a satisfactory manner. He said that the Complainant displayed a lack of analytical or troubleshooting skills that are an essential part of the job for which he was being considered. He said that the Complainant displayed a resistance to taking instructions from his line supervisors and trainers. He said that he changed the Complainant’s supervisors and trainers in turn to establish whether the problem was an interpersonal one specific to individuals in the plant. However, he finally decided that it was not and that the Complainant was unsuitable for employment in a permanent position. He said that his employment was terminated in the normal way. Escorting an employee from the plant was a standard procedure that was applied in this case.
In cross-examination he said that he did not make a written note of the complaint as he did not think it was significant. He said that he did not consider it the commencement of the Dignity At Work Policy procedures. He said that he dealt with numerous such disagreements between staff members in an informal and routine manner. He said that this was no different. He said that he did not go through a disciplinary procedure with the Complainant as he was on probation. He said that he treated all probationers in this way. He said that he accepts that the procedural agreements do not distinguish between the treatment of probationers and permanent staff. However, he said that he has consistently conducted his affairs in this manner and the treatment of the Complainant was no different.
Mr Tomasz Bereza, a co-worker and the object of the Complainant’s complaints, gave evidence to the Court. He said that while working with the Complainant he was occupied troubleshooting a problem in the post-hydration area of the line. He noticed that the injection process area required attention. He asked the Complainant to address the issue. He said the Complainant was uncooperative and told him not to tell him what to do. He said that he was aware that the Complainant had complained him to Mr Disney. He said that Mr Disney had spoken to him regarding the incident in a low key informal way. He said that there was no unpleasantness between them thereafter. They worked together without incident on subsequent occasions.
Mr Andrew Halliday gave evidence to the Court. He said that at the relevant time he was the Supervisor over the three lines concerned in the plant. His job was to ensure that all three lines functioned at a satisfactory standard of quality whilst at the highest level of output possible. He said that this brought him into contact with the Complainant on a regular basis. He said that he was not satisfied with the Complainant’s progress during his probation. He said that he was not effective at troubleshooting problems. He said that he had received adverse reports on him from other trainers and line leaders. He said that he noted these but came to his own conclusions regarding the Complainant’s abilities and aptitudes. He said that he concluded he was not suitable for permanent employment. He said the was aware of the complaint he made regarding Mr Bereza. He said that Mr Disney had told him about it as part of a regular briefing session. He said that he considered it minor and made nothing of it. He said it had no influence on his view of the Complainant nor of his conclusion that he was not suitable for appointment to the permanent staff.
Findings of the Court
Section 27 of the Act provides in relevant part
(3) An employer shall not penalise or threaten penalisation
against an employee for
(c) making a complaint or representation to his or her safety
representative or employer or the Authority, as regards
any matter relating to safety, health or welfare at work
The Act defines Penalisation in the following terms
- Section 27.—(1) In this section “penalisation” includes any act or omission
by an employer or a person acting on behalf of an employer
that affects, to his or her detriment, an employee with respect to any
term or condition of his or her employment.
(2) Without prejudice to the generality ofsubsection (1), penalisation
includes —
(a) suspension, lay-off or dismissal (including a dismissal
within the meaning of the Unfair Dismissals Acts 1977 to
- Section 27.—(1) In this section “penalisation” includes any act or omission
It is common case that the Complainant made one complaint regarding his treatment by a co-worker. There is considerable disagreement between the parties regarding the so-called “second complaint”.
Having listened to the witnesses the Court prefers Mr Disney’s version of events to that of the Complainant. Mr Disney presented as a competent Manager who dealt with people and situations as he found them. He acknowledged that he received a complaint regarding the behaviour of another employee towards the Complainant. The Court accepts his statement that he considered it a routine disagreement that could and should be addressed in an informal way. The Court notes that the other employees, Mr Bereza and Mr Halliday, gave evidence that was consistent with Mr Disney’s version of events. The Court also notes that the Complainant made no notes nor submitted any correspondence to the Company regarding the complaints he made. The Court notes that he did not return to Mr Disney regarding the second alleged complaint to establish what action had been taken in relation to it. Furthermore, he gave no evidence of following up the matter with the Human Resources Department at the time. For the Court to find for him on this point it would have to conclude that he made a complaint regarding an alleged assault in the course of his work and never once followed it up with a question or note to anyone thereafter. The Court finds this version of events less persuasive than that outlined by Mr Disney. Accordingly, as a matter of fact, the Court finds that only one complaint was made by the Complainant to the Respondent.
The Court is asked to decide that the Complainant’s dismissal arose wholly or in some part out of the complaint he made regarding the behaviour of his co-worker towards him. Having considered the evidence before it, the Court takes the view that the Complainant was dismissed because he failed to show the necessary skill and aptitude for the job for which he was under consideration for permanent employment. In this regard the Court was particularly impressed with the evidence of Mr Halliday, the Line Supervisor. He said that he had reservations about the Complainant from an early stage of his employment. He said he was introduced to him as a plastic moulding expert. He said that he concluded very quickly that he was not as capable as he had been represented to be. He said that he considered that the problem might be the nature of the trainers he had been assigned. Having changed these he had still failed to improve at the required rate. He said that he finally decided that he was not suitable for appointment to the permanent staff and advised Mr Disney accordingly. It is clear to the Court that Mr Disney acted on this advice and the information regarding the Complainant’s performance and capacity. The Court is satisfied that even if the Complainant had not made a complaint he would have been terminated during his probation period.
Accordingly, the Court finds that the complaint did not influence or cause the dismissal. The dismissal was caused by the Complainant’s inability to perform, to a satisfactory standard, the tasks for which he was employed.
Likewise with the complaint that the Complainant was moved to another line following the complaint he made regarding his co-worker’s behaviour. The Court takes the view that the Complainant was in a training phase and was being moved extensively around the plant to gain experience. The Court finds Mr Disney’s account of the decision to move the Complainant compelling. He said that he did not consider the complaint to be significant but as the two people were not getting on and as the Complainant was undergoing training he took the opportunity to move him to another line to continue his induction into the plant. It gave him the opportunity to extend his range of exposure to the plant and to the personnel that worked there. It also enabled him to put the Complainant under the guidance of another experienced operator who might form a better relationship with him and facilitate his development in the Company.
In the Court’s view this is not an act of penalization. It is a common sense approach to developing the training opportunities for the Complainant where he and another colleague were not getting on. It was designed to benefit the Complainant and not to penalize him.
Determination
The Court determines that the Complaint is not well-founded. The Decision of the Rights Commissioner is upheld. The appeal is dismissed.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
CR______________________
10th December, 2012Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.